[Cite as State v. Nealeigh, 2011-Ohio-1416.]
IN THE COURT OF APPEALS OF CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010CA28
vs. : T.C. CASE NO. 2010CR58
KRISTOPHER W. NEALEIGH : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 25th day of March, 2011.
. . . . . . . . .
Nick A. Selvaggio, Pros. Attorney; Richard L. Houghton, III, Asst.
Pros. Attorney, Atty. Reg. No.0055607, 200 North Main Street,
Urbana, OH 43078
Attorney for Plaintiff-Appellee
Jose M. Lopez, Atty. Reg. No.0019580, 18 East Water Street, Troy,
OH 45373
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On or about June 28, 2009, Defendant, Kristopher
Nealeigh, Amber Fraley, and Mark Toney were all using heroin.
Defendant overdosed, requiring paramedics from the Urbana Fire
Department and Champaign County Sheriff’s deputies to respond to
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a call for emergency medical assistance.
{¶ 2} Defendant was indicted on one count of possession of
heroin in violation of R.C. 2925.11(A), (C)(6)(a), a felony of
the fifth degree. Just prior to the final pretrial hearing on
June 10, 2010, Defendant filed a motion for intervention in lieu
of conviction pursuant to R.C. 2951.041. The trial court orally
denied Defendant’s motion, without a hearing. The court
subsequently journalized a written order denying the motion.
Thereafter, Defendant entered a plea of no contest to the heroin
possession charge and was found guilty. The trial court sentenced
Defendant to three years of community control sanctions.
{¶ 3} Defendant appealed to this court from his conviction
and sentence. He challenges only the trial court’s decision
denying his request for intervention in lieu of conviction.
ASSIGNMENT OF ERROR
{¶ 4} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION AS A
MATTER OF LAW IN DENYING DEFENDANT-APPELLANT’S MOTION FOR
INTERVENTION IN LIEU OF CONVICTION BASED UPON A BLANKET POLICY
ADOPTED BY THE TRIAL COURT TO DENY ANY AND ALL SUCH MOTIONS.”
{¶ 5} Defendant argues that the trial court abused its
discretion in summarily denying his request for intervention in
lieu of conviction, without a hearing, based upon a blanket policy
the trial court has that any and all such motions will be denied.
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Defendant claims that there is nothing in the record that
demonstrates he does not meet all of the eligibility requirements
in R.C. 2951.041(B) for intervention in lieu of conviction.
{¶ 6} We previously considered and rejected this same claim
involving this same trial court. In State v. Rice, 180 App.3d
599, 2009-Ohio-162, this court stated:
{¶ 7} “Pursuant to R.C. 2951.041(A)(1), a court may deny a
request for intervention in lieu of conviction without a hearing.
State v. Leisten, 166 Ohio App.3d 805, 2006-Ohio-2362, 853 N.E.2d
673. If the court instead elects to consider the request, the court
must conduct a hearing to determine whether the offender meets
all of the eligibility requirements in R.C. 2951.041(B) for
intervention in lieu of conviction. Id. The decision whether to
grant a motion for intervention in lieu of conviction lies within
the trial court's sound discretion. Id.; State v. Lindberg, Greene
App. No. 2005-CA-59, 2006-Ohio-1429, 2006 WL 759655. This court
has held that even if an offender satisfies all the eligibility
requirements, the trial court has discretion to determine whether
the particular offender is a candidate for intervention in lieu
of conviction. State v. Schmidt, 149 Ohio App.3d 89,
2002-Ohio-3923, 776 N.E.2d 113.” Id., at ¶10.
{¶ 8} “* * *
{¶ 9} “Crim.R. 52(A) defines harmless error and provides: ‘Any
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error, defect, irregularity, or variance which does not affect
substantial rights shall be disregarded.’ ‘A substantial right
is, in effect, a legal right that is enforced and protected by
law.’ State v. Coffman (2001), 91 Ohio St.3d 125, 127, 742 N.E.2d
644. ‘R.C. 2951.041 does not create a legal right to intervention
in lieu of conviction. Rather, the statute is permissive in nature
and provides that the trial court may, in its discretion, grant
the defendant an opportunity to participate in the early
intervention in lieu of a sentence.’ State v. Dempsey, Cuyahoga
App. No. 82154, 2003-Ohio-2579, 2003 WL 21154170, ¶9. Therefore,
abuse of discretion in denying a defendant's R.C. 2951.041 motion
without a hearing is harmless error that an appellate court is
charged by Crim.R. 52(A) to disregard, because the defendant could
have suffered no prejudice to a legal right enforced and protected
by law as a result.” Id at ¶14.
{¶ 10} At the pretrial hearing held on June 10, 2010, the
following colloquy took place:
{¶ 11} “THE COURT: Thank you. Bailiff, could you obtain the
document?
{¶ 12} “Revised Code Section 2951.041 provides, among other
things, that the Court may accept, prior to the entry of the guilty
plea, the offender’s request for intervention in lieu of
conviction.
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{¶ 13} “Court does not accept the request. Court will not
consider Defendant for intervention in lieu of conviction.” (T.
2-3).
{¶ 14} “* * *
{¶ 15} “The Court is declining to grant the request without
establishing a hearing for that motion. The Court believes it
is following the statutory procedure in making that distinction.
If you want that to be a matter of record, then your client will
need to waive his right to confidentiality. I’m not sure what
choice you’ll make on that.
{¶ 16} “MR. LOPEZ: Sir, I’d be happy to do that. And I don’t
mean to be argumentative with the Court. And I recognize that
the Court says it may consider. But I’m sort of at a loss here
given the fact there was no inquiry whether he’s a suitable
candidate other than the motion was filed and the Court simply
turning it down without making inquiry.
{¶ 17} “THE COURT: The Court may reject an offender’s request
without a hearing. If the Court elects to consider an offender’s
request, the Court shall conduct a hearing to determine eligibility
in all the other matters.
{¶ 18} “And we’re not having a hearing to do that because the
Court is proceeding under the statute to not accept the request
and not to conduct the hearing.
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{¶ 19} “The Court would note for the record that the Court
believes that there are two codefendants in the case. Two other
individuals who are codefendants. Making a total of three
codefendants.” (T. 4-5).
{¶ 20} At the sentencing hearing Defendant asked the trial court
to reconsider his request for intervention in lieu of conviction.
The trial court stated:
{¶ 21} “Your lawyer has correctly stated the situation when
he says he’s not aware of any factors that disqualify you from
treatment or intervention in lieu of punishment. By that I mean,
that the record appears to show that you’re a first time offender.
I don’t believe that intervention in lieu of conviction process
necessarily applies to the present circumstances. Heroin is an
insidious drug. Many people with the best of intentions are not
able to break free from the hold that the drug has for a continued
period of time.
{¶ 22} “Court believes that the extent of your usage and the
serious consequences that you’ve suffered as a result of that makes
it appropriate for a more extensive supervision to be involved.
The number of people involved in the usage process, the length
of time involved in the usage process, and the gravity of the usage
process are all factors that were considered by the Court in
determining the nature of supervision that is going to be imposed
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here. Those were also reasons why the Court would believe that
supervision or the treatment in lieu of conviction – correction
intervention in lieu of conviction is not appropriate in the present
case.” (T. 16-17).
{¶ 23} The trial court’s Journal Entry of Conviction and
Sentence states:
{¶ 24} “REQUEST FOR INTERVENTION IN LIEU OF CONVICTION
{¶ 25} “Counsel for Defendant asked the court to reconsider
the Defendant’s request for intervention in lieu of conviction.
After listening to the request, the Court declined to change the
previous ruling. The hearing is not a hearing to consider
intervention. In explanation of the ruling the Court noted the
number of people involved in the substance abuse pattern, the period
of usage, the insidious nature of the drug involved, and the serious
consequences of this particular drug usage by the Defendant. The
sum total of all these circumstances indicate to the Court a level
of concern that requires community control is a key element of
the rehabilitation of the Defendant. The Court also believes that
intervention in lieu of conviction would demean the seriousness
of the offense.”
{¶ 26} The record does not support Defendant’s claim that the
trial court refused Defendant’s request for intervention in lieu
of conviction based upon some blanket policy of denying all such
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requests, without regard to the facts and circumstances of the
particular case. The court’s reasons for refusing Defendant’s
request are not matters that would exclude Defendant from
eligibility for intervention in lieu of conviction. See: R.C.
2951.041(B). Nevertheless, because R.C. 2951.041(A) creates not
a right of relief, but instead a privilege that the trial court
possesses considerable discretion to deny, the denial of
Defendant’s request was, at worst, harmless error. Rice, Id. at
¶15.
{¶ 27} It is once again worth repeating what we said in Rice:
{¶ 28} “A blanket policy of denying all requests without a
hearing, which Defendant-appellant argues the Court of Common Pleas
of Champaign County applies, would not be an exercise of sound
discretion. However, on this record, we have no basis to find that
the court has such a policy.
{¶ 29} “It is unfortunate that the General Assembly crafted
R.C. 2941.041 as it did. That section creates a substantive right
of relief, but permits the court to deny the right by overruling
the defendant's procedural request for a hearing. If that allows
courts disposed against the state's policy favoring intervention
in lieu of conviction to undermine that policy by arbitrarily
denying the hearing, then the General Assembly should remove that
impediment against its policy from R.C. 2941.041.” Id. at ¶17-18.
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{¶ 30} Defendant’s assignment of error is overruled. The
judgment of the trial court will be affirmed.
FAIN, J., concurs.
DONOVAN, J., dissenting:
{¶ 31} I disagree. In my view, the explanation the court
offered at Nealeigh’s disposition as to why intervention in lieu
of conviction “is not appropriate in the present case” (T. 16-17)
reveals a refusal to exercise sound discretion in holding a hearing.
This, coupled with a concession by the State at oral argument
that only one grant of intervention in lieu of conviction order
could be located in the Champaign County Common Pleas Court’s
history warrants reversal in the case.
{¶ 32} When the legislature enacted the ILC version of R.C.
2951.041 in 1999, a policy determination was made that when
chemical abuse is the cause or at least a precipitating factor
in the commission of a crime, it may be more beneficial to the
community and the individual to treat the cause rather than punish
the crime. In my view, the lack of hearings over a decade or more
time frame, along with the following statements by the trial court
establish a refusal by the court to exercise sound discretion.
Specifically, at disposition the court made the following erroneous
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statement regarding the ILC statute:
{¶ 33} “I don’t believe the intervention in lieu of conviction
process necessarily applies to the present circumstances.”
Immediately thereafter by reference to the “insidious nature of
heroin,” the court makes it readily apparent that it holds a view
that ILC should not and does not apply to heroin possession cases.
This is simply not the law.
{¶ 34} The trial court’s interpretation and application of the
statutory eligibility requirements for intervention in lieu of
conviction is a matter of law subject to de novo review. State
v. Casto, Clinton App. No. CA 2008-08-033, 2009-Ohio-791. By
excluding heroin possession from ILC consideration and virtually
never conducting a hearing on ILC, the court has abrogated its
responsibility to exercise its sound discretion.
{¶ 35} I would reverse and remand.
. . . . . . . . . .
Copies mailed to:
Richard L. Houghton, III, Esq.
Jose M. Lopez, Esq.
Hon. Roger B. Wilson